Lawyer: Bigamy law has loophole

Lawyer: Bigamy law has loophole

March 24th, 2010by Monica Mercer in News

A little-known aspect of Tennessee's bigamy law could lead to the dismissal of charges against a man accused of being married to two women at the same time.

Former associate pastor Harold Garth gained attention early last year when authorities arrested and charged him with two counts of bigamy after evidence showed he married a woman while he still legally was married to another.

But police caught him too late, according to defense attorney Alan Dunn, who is asking Hamilton County Criminal Court Judge Don Poole to dismiss the case.

Mr. Dunn describes in court documents how the definition of bigamy in Tennessee's criminal legal code affects its statute of limitations, or the time frame in which authorities can prosecute people for various crimes.

Like all misdemeanors, the statute of limitations for bigamy is one year. The law fails, however, to define bigamy as a crime that is "continuous in nature," which Mr. Dunn says prevents authorities from criminally charging a bigamist on any given day of a marriage.

Mr. Dunn says the statue of limitation with regard to bigamy can start running only on one day -- the day the marriage certificate is signed.

Because authorities charged Mr. Garth more than three years after he signed the 2006 marriage license that rendered him a bigamist, Mr. Dunn argues that the prosecution is illegal and that his client never should have been prosecuted in the first place.

Several other states, including New York, New Jersey, Alabama and Arkansas, treat bigamy in a similar way. The appellate courts of those states consequently have upheld trial court decisions to abandon the prosecutions of bigamists because of a misunderstanding of the nature of the crime.

"Bigamy is not a continuing offense," the Supreme Court of New York ruled in a recent bigamy case. "The crime is committed the instant the second ceremonial marriage is consummated."

There is no such precedent in Tennessee, where bigamy rarely is prosecuted. But the state's appellate courts soon could be contemplating the issue if either side decides to appeal Judge Poole's ruling in Mr. Garth's case.

A written decision could come as early as today.

Attorney Ben McGowan, who helped Mr. Dunn research the legal issues surrounding bigamy, said he will be surprised if Tennessee's higher courts do not eventually fall in line with other states.

"Statute of limitations issues are often very frustrating because they give the appearance of escaping justice based on a technicality," Mr. McGowan explained. "But the fact is, the Legislature created statutes of limitations for a reason -- to prevent unfair prosecution. They are the law."

ABOUT THE CASE

Harold Garth, formerly an associate pastor at Greater Shiloh Baptist Church in Chattanooga, was charged in early 2009 with two counts of bigamy after wife Mary Rodriguez Garth found out he never had obtained a divorce from Patricia Ann Middlebrooks. Mr. Garth told the Times Free Press at the time that he blamed the charges on "bitter women" and that he was done with marriage. Court documents filed by his defense attorney now admit that Mr. Garth was a bigamist. He is trying to get the charges dismissed, however, since he maintains the statute of limitations for the crime of bigamy had run out when police arrested him.

There can be exceptions to statutes of limitations, particularly when someone takes calculated steps to conceal a crime.

In defending the prosecution of Mr. Garth, Hamilton County Assistant District Attorney Cameron Williams argues in court documents that Mr. Garth did just that by lying about being divorced and telling his second wife he never could have gotten a marriage license under any other circumstance.

Mr. Dunn said the state and everyone else had ample opportunity to learn about Mr. Garth's crime through public marriage licenses that are kept on record in Hamilton County Circuit Court.

"(We fail) to understand how (Mr. Garth) can conceal the fact (he committed bigamy) when there is a public record for the entire world to see," Mr. Dunn said.